March 12, 2010

More Briefs Missing From Holder Questionnaire

Posted at 11:51 a.m., updated at 4:22 p.m.

Attorney General Eric Holder Jr. did not list at least six U.S. Supreme Court briefs that a questionnaire asked him to disclose during his confirmation process in late 2008, the Justice Department acknowledged today.

Two of the six briefs, in cases involving Jose Padilla, were the subject of a story Wednesday on the Web site of National Review. In response to that story, Holder spokesman Matthew Miller said the briefs “should have been disclosed as part of the confirmation process” and that the briefs were “unfortunately and inadvertently missed” in preparing thousands of pages of records.

But a search of amicus briefs on Westlaw turns up others that Holder signed but did not mention when he answered a Senate questionnaire, raising further questions about how thorough he and his staff were in preparing for the confirmation. One brief related to allegations of racial bias by prosecutors in jury selection and another to the timing of Miranda warnings.

Shortly after Holder turned in the questionnaire in December 2008, Republicans called it incomplete. Holder then supplied additional materials to the Senate Judiciary Committee, which held a confirmation hearing in January 2009. Five amicus briefs and one petition for certiorari were not among the additional materials Holder supplied, the Justice Department revealed today. One Republican Senate aide said Holder should have provided the briefs, especially because they deal with issues of criminal law.

In a letter from Assistant Attorney General Ronald Weich to senators, the department said it regretted “the omission.” Click here for a copy of the letter and here for the accompanying list. A spokeswoman for committee Democrats did not have a comment.

The Justice Department sent the letter after The National Law Journal began asking Thursday about undisclosed amicus briefs, including one in Missouri v. Seibert and one in Miller-El v. Dretke.

Holder is scheduled to appear before the Judiciary Committee on March 23 for an oversight hearing of the Justice Department, and Republicans have made clear that they plan to press him on why he did not disclose the Padilla briefs.

“Are we expected to believe that then-nominee Holder, with only a handful of Supreme Court briefs to his name, forgot about his role in one of this country’s most-publicized terrorism cases?” asked Sen. Jon Kyl (R-Ariz.), at a March 11 meeting of the Judiciary Committee. “To me, that strains credulity, and I’m someone who voted for Attorney General Holder.”

Stephen Boyd, a spokesman for Sen. Jeff Sessions (R-Ala.), the committee’s top Republican, said the omissions will be a "significant issue" at the upcoming hearing. “The Attorney General, as with all nominees, has a duty of candor to provide all information requested by the Senate Judiciary Committee in connection with his nomination. It is simply unacceptable that briefs in such significant cases were not provided to the Committee so that they could be discussed during his confirmation hearings," Boyd said in a statement.

In an interview Thursday, former White House counsel Gregory Craig said Holder should not receive personal blame for the failure to turn over materials. “I’m sure it wasn’t Eric’s job to gather all the briefs,” Craig said, adding of the Padilla brief, “The notion that this was an intentional oversight is preposterous.”

Craig, who left the Obama White House in January, said he was “in and out” of the vetting process for Holder and that much of the job fell to Weich, then a lawyer for Senate Majority Leader Harry Reid (D-Nev.). Weich now runs the Justice Department’s Office of Legislative Affairs. He did not respond to a request for comment.

Kenneth Gross, who vetted vice presidential nominee Al Gore in 1992, said that, in general, it’s not unusual for nominees to omit materials inadvertently. It’s just that the materials rarely ever come up later. Given the volume of documents, he said, “It would be remarkable if something wasn’t left out. You just have to hope it’s something that’s not significant.” Gross, like Craig, is a partner at Skadden, Arps, Slate, Meagher & Flom.

The relevant part of Holder’s Senate questionnaire (PDF) is Question 14(e). It asked him to supply copies of “any briefs, amicus or otherwise” sent to the Supreme Court “in connection with your practice,” and he listed three cases that he had some involvement in: gun-rights case D.C. v. Heller, jury-selection case Miller-El v. Cockrell, and voting-rights case Johnson v. Bush. (The Court denied certiorari in Johnson.)

Aside from the Padilla briefs, a search by The National Law Journal turned up two others: an Oct. 8, 2003, brief in Missouri v. Seibert and a Sept. 2, 2004, brief in Miller-El v. Dretke. (The latter case is a follow-up to Miller-El v. Cockrell.)

In Missouri v. Seibert, Holder joined a brief with other former prosecutors, judges and law-enforcement officials. They condemned a police officer who used a two-stage interrogation technique, with a Miranda warning sandwiched between two sessions of questioning that each resulted in a confession. The Court ruled 5-4 for the defendant.

In Miller-El v. Dretke, Holder again joined former prosecutors and ­judges. They argued that the U.S. Court of Appeals for the 5th Circuit had applied an incorrect standard in evaluating allegations of racial discrimination in jury selection. The Court overruled the 5th Circuit in a 6-3 ruling.

Weich, in the DOJ letter, acknowledged those omissions and disclosed two others: An amicus brief in Dretke v. Haley and a petition for writ in McDonald v. United States. (The department’s list includes, as a seventh omission, a brief in Johnson v. Bush.)

Within days of Holder finishing his Senate questionnaire, Republicans attacked it as incomplete and rushed. Roll Call reported at the time that Sen. Arlen Specter (Pa.), then the top GOP member on the Judiciary Committee, wrote a letter citing eight items Holder didn’t address, including an opinion piece on gun-show background checks and testimony from five congressional hearings.

Holder responded with additional materials. “While I made a good faith effort to fully answer the Committee’s questions in my initial submission,” Holder wrote, “it appears that the process I used to search manually and electronically for relevant material from my three decades in public life was deficient.”

Comments

It wasn't his job to gather the briefs?? HA!
It certainly was his job to account for every one of them regardless of who was the
aid designated to collect the briefs. This is the data used to determine the very qualifications for an attorney general position. The lack of or failure to file the briefs is very possibily deliberate and
an investigation is warranted and required.

This really hurts the Attorney General in two ways: his failure to disclose the briefs and the contents of the briefs themselves. His theory in the Padilla brief of "acceptable risk" in the ability of the government to obtain information from terrorists is very troubling.

Knowingly withholding pertinent information isn't ethics even to the common man! Lawyers get away with anything by twisting a lot of words; but -- the reality is that everyone knows this is not transparent and bodes ill for justice at the highest level!

Any Judiciary staffer or first year lawyer can run a Lexis or Westlaw check and find the information. It's a reflection on the inadequacy of everyone's due diligence, but for the Republican Senators to make a big deal about what is clearly inadvertant should be more embarrassing to them than to Holder.

Even if you don't think the Supreme Court practice question calls for the brief (and I believe that it does), Holder responds to the question "I have participated as an amicus party in three amicus briefs" and then lists three briefs where he participated as amici curiae. Why would he provide those three briefs and not the others?

They are only "missing" if the questionnaire calls for briefs where one serves as an amicus curiae and not as counsel to an amicus, which does not appear to be the case since the question begins, "Describe your Supreme Court practice," and serving as a friend of the court is not "practice" as an attorney. Nonlawyers do it all the time and aren't engaging in unauthorized practice.